Preparing the Witness Who is Disabled

Introduction

If you are litigating crime victim cases, you have probably encountered a client or witness who has a disability. Statistics collected by the U.S. Centers for Disease Control and Prevention (CDC) indicate that almost 30% of the adult U.S. population, approximately 62 million people, may experience some disability, defined as difficulty with basic movement, sensory, cognitive or emotional actions.[1] Not only are persons with such disabilities more likely than persons without disabilities to be crime victims (and hence to find their way into your client pool),[2] but in the decades since the enactment of the Americans with Disabilities Act (ADA),[3] they are more likely than in previous eras to be involved in mainstream business, social and civic activities (and hence to become witnesses to the criminal and tortious actions that victimize your clients).[4] This paper offers some practical suggestions for preparing a client or witness with a disability for courtroom or deposition testimony.

Know your disabilities, know your witness

Advocates for persons with disabilities begin with the recognition that persons with disabilities are more than their disabilities and need to be treated as “people first.” This means, as an initial step, using “people first” language– that is, language that identifies your clients or witnesses, not, collectively, as “the disabled,” not even, individually, as “the blind woman” or “the retarded boy,” but as “persons living with a disability,” such as “a woman who has a visual impairment” or “a boy with a developmental disability.”[5] It also means avoiding terms of pity, such as the commonly used phrases, “suffering from” or “victimized by” a disabling condition. And it means means making every effort to address the person directly, even if your communication is assisted by an interpreter or a computer or other device. Effective advocates must check their own prejudices and stereotypes about persons with disabilities and strive to build on similarities rather than differences in interviewing, deposing, and preparing witnesses for court appearances.[6]

At the same time, effective advocates must be aware of the range of limitations imposed by various disabling conditions, whether physical, sensory, emotional, or cognitive.[7] In particular, it is essential to learn about the specific limitations posed by a disability, as experienced by the client or witness you’re working with. A quick starting place might be the U.S. Department of Justice’s publication, Victims with Disabilities, which draws from web sites and publications of pertinent advocacy groups to offer brief descriptions of a variety of disabling conditions as well as links to condition-specific resources.[8]

Equally important are the insights about the individual’s strengths and limitations which may be gleaned from the client’s or witness’s family and care providers, coworkers or social workers, and– if available to you– employment, school, and medical records. If you are preparing a client or witness to give testimony, you will be particularly interested in cognitive performance– awareness, perception, reasoning, judgment, and memory– and in communications abilities and needs. Remember that communications difficulties, especially those related to accident or degenerative disease, are not synonymous with cognitive impairment, and even cognitive impairment does not necessarily affect the reliability of memory. Family and care providers can help you discern how best to understand and communicate with your client or witness, and how best to prepare yourself, your client, and the court for a fair hearing of the client’s or witness’s testimony.[9]

You will also want to know about the impact of stress or excitement on your client’s or witness’s performance, both for accuracy of perception and memory about the criminal act and as bearing on courtroom behavior. For example, people with learning disabilities who process, store and communicate information slowly or idiosyncratically may become easily confused when questioning proceeds too quickly or non-linearly; while people with Down’s Syndrome, who are often particularly sensitive to negative emotion, may perceive tough questioning as aggression and respond by trying to appease the questioner, undermining the reliability of their information. Your early insights into the individual’s performance strengths and limitations will help shape the pattern, the language, the tone, and the duration of interviews, depositions, and direct and cross examination at trial.[10]

You will also want to know, from your client or witness and from family or caregivers, about any need for assistive technology, physical accommodation, scheduled medication, supportive personnel, or appropriate trial pacing so that the client’s or witness’s testimony is freely given and fairly heard. How does the client or victim normally communicate? Does he/she use sign language (and if so, which one?), hearing aids, word or picture boards, anatomical dolls, computerized voice production, or facilitated communication? Will facility wiring, furnishings or geography allow full access to the courtroom? Will there be a need to minimize distractions or accommodate medication schedules during the course of deposition, testimony, or the trial as a whole? The more you know about the individual skills, limitations, and accommodation needs of your client or witness, the better prepared he/she and you will be to handle courtroom challenges and the stress of questioning at trial. [11]

Search out resources, request accommodation

Once you have had some exposure to the particular strengths and limitations of your client or witness, you will be in position to search out any resources, technologies, or expertise that might be necessary, or even helpful, for courtroom understanding of– and receptivity to– his or her testimony. If communication difficulties are substantial, you may need to work with an interpreter, facilitator, or another auxiliary aid, which will entail making pre-trial motions or administrative requests and other appropriate preparations.[12] Notably, victims and witnesses are entitled to physical and communications accommodation under the ADA, so your pre-trial request for translation or other communications assistance may be directed, in the first instance, to a courthouse ADA officer.[13] Requests for interpretors may also fall under state statutory provisions, generally implemented by pre-trial motion.[14] Any request for an interpreter should be specific as to the witness’s customary communication language or medium; and interpreters should, where possible, be certified or trained professionals rather than family members.[15]

You might also consider offering expert testimony to help explain the witness’s limitations, with cautions, of course, about impermissible vouching for credibility.[16] Or you may seek to use demonstrative evidence, such as anatomical dolls, to overcome a witness’s communications difficulties, or attempt to employ video or closed-circuit technology where necessary to protect a vulnerable witness from stress or fright.[17] You may also need to make appropriate motions or other requests regarding physical access to the courtroom, the elimination of distractions in the courtroom setting, the duration and scheduling of proceedings, even permission to deviate from the usual form of questioning– for instance, to ask leading questions or limit courtroom noise or movement or maintain a witness’s personal distance during interrogation by your opponent.[18] Whatever your client’s or witness’s needs, you must be prepared to request appropriate aids on behalf of your client or witness in advance of trial, or risk waiving claims regarding denial of access.[19]

In connection with an ADA communications accommodation request, you should note that, under the ADA, your client’s or witness’s choice of a specific auxiliary communications aid– an interpreter or communications facilitator, an assistive listening system, a speech sythesizer or communications board, video interpretation, Brailled or large print writings– must be given primary consideration unless shown to work a fundamental change in the proceedings, or to be duplicative or unduly burdensome to the court system; and the cost of making a service accessible must be born by the public entity.[20] Note also that motions regarding the order and conduct of courtroom proceedings generally rest in the sound discretion of the court, which may require you to draw persuasively on your preliminary research regarding your client’s abilities and specific disabilities, changing understandings of mental illness or cognitive impairments, new accommodation devices or mechanisms, and ADA mandates.[21]

Prepare for a competence challenge

It is now axiomatic that a disabled person is not per se incompetent to testify. The Federal Rules of Evidence declare, presumptively, that “[e]very person is competent to be a witness;” while the United States Supreme Court has recognized that even persons with developmental disabilities are competent to stand trial, so long as they are shown to know the difference between right and wrong.[22] Nonetheless, your adversary may challenge the testimonial competence of your client or witness, particularly where a mental health, cognitive or communications disability is involved.[23] A competency determination rests in the exclusive discretion of the court, although, in the court’s discretion, expert testimony regarding mental condition may also be heard by the jury insofar as it is relevant to the jury’s assessment of the witness’s abilities and the weight to be afforded his or her testimony.[24] Thus, a competence hearing may work in your client’s or your witness’s favor, as it serves to educate the court and, possibly, the jury about the client’s or witness’s observational and communications strengths and limitations.

Given the presumption in favor of testimonial competence, your adversary will have the burden of proving incompetence. While state formulations may differ, the general criteria for witness competence are capacity to perceive, recall, and communicate things seen or heard and understanding of the duty to testify truthfully.[25] Psychiatric, psychological or other expert testimony may be helpful to elucidate the capacities and abilities of the witness, but it is not essential, and only rarely will it be ordered by the court for a non-party witness.[26] Rather, both cognitive and truthtelling capacities may be established in language and questions consistent with the witness’s experience and intelligence. For example, a witness’s ability to identify her address, her housemates, and her pet’s names might suffice to establish her recall and communications skills, while a promise not to answer if she could not remember, or her articulation of an understanding that lying was wrong, might establish a sufficient undertaking to tell the truth.[27]

Your adversary may object to a witness’s competence on the grounds that communications limitations limit his or her ability to cross-examine the witness. However, even in criminal cases, the fact that a witness speaks only with assistance or through an interpreter does not bar testimony on competence grounds. Rather, the courts have most often permitted such testimony, while allowing extensive cross-examination based on expert testimony, expert evaluation, and/or access to the witness’s mental health, medical or social work records.[28] The opposing party may also be entitled to a jury charge that the disability of a witness bears on the weight to be given the witness’s testimony.[29]

Prepare your witness for the courtroom context and questioning

Advocates for the disabled consistently recommend that you do your utmost to familiarize your client or witness with the courthouse or law office setting. This should include an advance visit to the courtroom, which serves not only to acclimate the client/witness to the space, the witness box or counsel table, and, perhaps, similar proceedings, but also to identify any hitherto unforeseen barriers to access or to communication that can be remedied in advance.[30] Your courthouse visit may also provide an opportunity to address the witness’s safety concerns and to observe how he or she will react to stress, distractions, or the presence of uniformed court personnel.[31]

You will also need to familiarize your witness with courtroom procedure and the general legal framework of the case. Helping the witness understand that the trial consists of questions, answers, and occasional objections is particularly important if the witness does not think or communicate in a linear fashion, has a tendency to lose focus or ramble, or responds to stress with a desire to please. It is also important to impress on your witness, especially one who easily loses focus or panics under stress, that he or she must listen to each question carefully, listen to the whole question, pause before answering, answer only the question that is asked, and above all, tell the truth.[32] As with other witnesses, it is permissible to practice the Q&A process, to provide the witness with questions you plan to ask, to conduct a practice direct examination, to point to facts and documents that may reveal inconsistencies or refresh recollection, to examine testimony for weaknesses that may be exploited on cross-examination, and to conduct a mock cross-examination, optimally conducted by another attorney to prepare the witness for questioning by a stranger.[33] Your preparation should also include guidance on courtroom demeanor, dress, mannerisms, and eye contact, and may include videotaping a mock Q&A session to help the witness see or hear how others see or hear him/her.[34]

In framing questions for direct examination of the disabled witness, you will need to adjust your language to the witness’s level of attention and understanding, using concrete rather than abstract terms, simple rather than compound questions, and, if possible, open-ended rather than leading questions.[35] However, if your witness has difficulties with language, narration, or focus, you might move in advance to allow for direct examination using leading questions, while keeping in mind that a suggestible witness may be easily misled by leading questions in cross-examination as well.[36] You will also want to alert the court and the opposing party to the witness’s needs, if any, for a slower-than-usual pace for Q&A, for periodic breaks against fatigue or medication needs, for repetition of questions or testimony, and for opportunities to confer with counsel.[37]

In preparation for cross-examination, you will have gone through inconsistencies and gaps in the witness’s pre-trial statements and rehearsals, to try to ensure that the witness has some explanation for each discrepancy. You will also have reviewed with your witness his or her prior criminal conduct, other possible grounds for impeachment, and other unfavorable facts, as well as the need to acknowledge such information if asked about it. You will, however, advise your witness not to answer questions when objections are made, not to volunteer information, to limit answers to “yes” or “no” if possible, to make efforts to remember but not to guess, and to acknowledge any mistakes forthrightly. You will also explain that there will be opportunities to correct, expand, or explain testimony on re-direct examination.[38] You may also need to anticipate stress reactions to adverse questioning or adverse decisions, and be prepared to ask for appropriate recesses or continuances if the witness shows typical signs of stress, such as withdrawal, distraction, figeting, raoning, rocking, tapping, and disengagement.[39]

In all your pre-trial work with your witness, you must be prepared to defend against potential claims of inappropriate coaching, especially if the witness is known or shown to be particularly susceptible to suggestion or over-eager to please. As with all witnesses, the line between preparation and coaching may be very thin. Questionable areas which may readily in preparing a witness with a cognitive or communications disability may include guided word choice and counsel regarding demeanor and confidence. Standard advice regarding attorney self-scrutiny in the course of witness preparation is all the more pertinent when you are preparing a vulnerable witness; but it may also be true that the witness’s limitations will render him or her impermeable to suggestion– an issue which may be explored, perhaps with the assistance of expert testimony, in a pre-trial hearing if a good-faith question of coaching or undue suggestion is raised.[40]

Testimony on the issue of consent

Persons with a disability are twice as likely as persons without a disability to have been the victims of rape or sexual assault.[41] If you represent a victim in such a case, even in a civil trial, you may have to address the issue of capacity to consent. This issue is independent of, but often overlaps with, the issue of competency.[42]

Formulations of the lack of capacity to consent to sexual conduct vary from state to state, with courts often offering little consistent guidance as to the definition or elements of incapacity.[43] While there is general consensus that consent refers to knowing, intelligent, and voluntary agreement, courts may disagree regarding the balance of these three factors and the role of expertise in determining whether a particular victim has consented to sexual activity. Most states focus on the element of knowledge, that is, understanding of the physiology of the sex act; some, however, add to knowledge an ability to appreciate the moral consequences of sexual conduct.[44] Most states allow expert testimony on consensual capacity; others allow lay opinion or rest a jury assessment of capacity on the victim’s testimony.[45] If your client’s case rests on the absence of consent, you will want to know the criteria bearing on capacity identified in psychological literature– e.g., IQ, mental age, functional abilities, other determinations of decision-making capacity– as well as the various assessment tools and models, such as the “SSKAT” (Socio-Sexual Knowledge and Attitudes Test), that may ground expert testimony on capacity or, at the least, help you evaluate and prepare your client for his or her own testimony on consent.[46]

As noted above, although there is overlap between testimonial competence and capacity to consent, the issues are not the same; your client may have the cognitive and truth-telling capacity to testify, while lacking an appreciation of the nature or consequences of sexual activity that determines capacity to consent. As with testimonial competency, however, your pre-trial inquiries of family and friends, your research about particular disabilities, and access to expertise in the fields of mental health and developmental or other disabilities will help you prepare your client for any testimony he or she must give on the issue of consent.[47]

Conclusion

Preparation of the disabled witness requires you to draw on information and practices from a wide variety of sources, including the witness and his or her closest associates, his or her professional caregivers, the relevant disability community, allied areas of medicine, psychology and social work, legal ethics, and the statutes and case standards of your own jurisdiction. You must shed stereotypes and habits of language, delve into the strengths and limitations of your witness, advocate for full access to the courts, and tread a fine line between preparation and coaching, all the while remaining sensitive to the witness’s personal needs and the often extraordinary stresses of court proceedings. In the course of preparation you will no doubt be surprised by the strengths and cares of individuals and whole communities increasingly entering into public life and public purview, and will find satisfaction in overcoming personal and professional challenges in this growing aspect of your legal practice.

[1] U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics, Disability and Health in the United States, 2001-2005, online at //www.cdc.gov/nchs/data/misc/disability2001-2005.pdf. Other estimates drawn from the 2008 National Health Interview Survey (NHIS) indicate, for particular forms of disability, that 34.8 million Americans (15%) report hearing disabilities, 25.2 million (11%) report vision limitations, and 33.1 million (15%) report physical function difficulties. See, CDC, Disability and Functioning (Adults), online at //www.cdc.gov/nchs/FASTATS/disable.htm.

[2] Michael Rand and Erika Harrell, “Special Report: Crime Against People with Disabilities, 2007,” National Crime Victimization Survey, Bureau of Justice Statistics, U.S. Department of Justice, October 2009, at //bjs.ojp.usdoj.gov/content/pub/pdf/capd07.pdf; see also, Robert D. Laurino, Never Court Disaster: Navigating the Legal System for Victims and Witnesses with Disabilities, National Center for Victims of Crime, co. 2004, at //www.ncvc.org/ncvc/Print.aspx!dbName=DocumentViewer&DocumentID=47077; Richard McNally, Autism and the Courts, Disabilities Project Newsletter, State Bar of Michigan, v. 2, i. 1, December 2005, at //www.michbar.rg/programs/Disabilities_news_5.html; K. Cremin et al., “Article: Ensuring a Fair Hearing for Litigants with Mental Illnesses: the Law and Psychology of Capacity, Admissibility, and Credibility Assessments in Civil Proceedings,” 17 J.L. & Policy 455 (2009), n. 29 thereof (persons with severe mental illness 11 times more likely to be victims of violent crime than members of the general populace).

[4] National Council on Disability, The Impact of the ADA: Assessing the Progress Towards Achieving the Goals of the ADA, July 26, 2007, //www.ncd.gov/newsroom/publications/2007/ada_impact_07-26-07.htm.

[7] These are the four general categories of disability identified by the CDC in its comprehensive survey of Disability and Health in the United States, 2001-2005, cited above. Other practitioners add a category for “communication” disabilities, to cover speech production difficulties resulting from physical conditions such as stroke, cerebral palsy, spinal cord injury or the like. See, e.g., Victims with Disabilities, supra, p. 7-8.

[13] For analysis of the trial-accommodations import of the ADA, particularly Title II and its implementing regulations at 28 C.F.R. pt. 35, see, K. Cremin, supra, 17 J.L. & Policy, and J. Zelhof et al., “Protecting the Rights of Litigants with Diminished Capacity in the New York City Housing Courts,” 3 Cardozo Pub. L. Pol’y & Ethics J. 733 (2006). For an overview of ADA mandates for public entities including courts, see, U.S. Department of Justice, “Chapter 1 ADA Basics: Statutes and Regulations,” and “Chapter 3 General Effective Communication Requirements Under Title II of the ADA,” in ADA Best Practices Toolkit for State and Local Governments, online at //www.ada.gov/pcatoolkit/chap1toolkit.pdf and //www.ada.gov/pcatoolkit/chap3toolkit.htm. For sample ADA request procedures, see, e.g., Clark County WA, “ADA Policy and Procedure,” at //www.clark.wa.gov/courts/documents/ada_policy.pdf (procedure and forms for ADA accommodation requests for court proceedings). And see, Commonwealth v. Kofi Agana, Mass. Sup. Jud. Ct. SJC-10609, arg. May 6, 2010, summary online at //jackcushman.com.mab/case/SJC-10609 (denial of aphasic victim’s application for interpreter and use of leading questions under ADA “reasonable accommodation” mandate, on appeal to SJC).

[23] K. Cremin et al., supra, report that testimony of persons with mental illness is often erroneously excluded or disregarded, because both courts and advocates erroneously assume that mental illness is tantamount to incompetence or otherwise renders testimony invalid or valueless.

[25] See, e.g., Kan. Stat. Ann. § 60-417 (witness not qualified if judge finds him (a) incapable of expressing himself so as to be understood by judge or jury either directly or through an interpreter, or (b) incapable of understanding the duty to tell the truth), Mitchell v. Kemna, 109 F.3d 494 (3th Cir. 1997) (under MO law, test of incompetence is inability to understand nature of oath or demonstrate sufficient mental capacity to observe, recollect and narrate; burden is on challenger to establish incompetence), Watson v. State, 596 S.W.2d 867 (Tex. Crim. App. 1980) (Under Tex.R.Evid. 601, witness presumed competent unless shown to lack perception, recall, communication skill or an appreciation of the obligation to give truthful testimony), State v. Adams, 955 P.2d 781 (Utah App. 1998), aff’d 5 P.3d 642 (Utah 2000) (victim with Down’s Syndrome competent to testify where defense was unable to show she could not relate information to others or understand need to tell truth), see also, People v. Parks, supra (under NY Crim. Proc. L. § 60.20, test is whether witness “has sufficient intellience to understand the nature of an oath and to give a reasonably accurate account of what he has seen and heard vis-a-vis the subject about which he is interrogated”), State v. Milbradt, supra (under OR law, woman with severe mental retardation competent to testify where she meets basic cognitive and truth-telling tests for competency), Seabra v. Trafford-Seabra, supra (under RI law, test of competence is witness’s present ability to comprehend obligation of oath and give correct account of what he/she has seen or heard).

[27] See, e.g., State v. Rivera, 987 A.2d 887 (R.I. 2010)(witness need not be able to explain the meaning of an oath, or even describe what it means to “promise,” in order to be found competent to testify); People v. Alexander, 724 P.2d 1304 (Colo. 1986) (assault victim who was partially deaf and needed signing interpreter held to be competent although she could not define abstract concept of truth through sign language). See also, Laurino, supra (suggesting use of concrete tests for truthtelling, such as ability to tell the truth about colors, clothing, or the weather.

[28] See, e.g., People v. Baranek, 287 A.D.2d 27 (N.Y. App. Div. 2001)(reversible error to limit cross-examination and expert impeachment of complainant with lengthy psychiatric history), People v Freshley, supra (defense entitled to examine records reviewed by psychologist who testified as to complainant’s disability), cf., Hyman v. State, 338 So. 2d 448 (Ala. Crim. App. 1976) (difficulty of cross-examining hearing impaired witness does not bar testimony, but should be considered by jury in evaluating witness’s testimony), but see, People v. White, 238 N.E.2d 389 (Ill. 1968)(conviction reversed on confrontation grounds where sole eyewitness could only communicate by raising knee when her answer to questions was in the affirmative).

[47] Cf., Denno, supra, arguing for a contextual and particularized assessment of capacity to consent, based on “modern knowledge about the adaptive capabilities of mentally retarded individuals as well as the situational context of the sexual conduct.”

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